Shadowboxing and unintended consequences

The Court today struck down a statute that did not exist. And it did so at the request of jurisdictions seeking a little extra “dignity” — who might end up with less dignity as a result.

Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b — Section 4 of the Voting Rights Act, and a central part of the Act’s preclearance regime. Its more famous counterpart, Section 5, requires certain jurisdictions to submit election changes for federal review, to ensure that they do not harm minority voting power. Section 5 sets the “what.” Section 4 sets the “where,” delineating which jurisdictions receive Section 5’s special medicine.

But the Section 4 that the Court struck is a curious creature — as I’d feared, a simulacrum. The Court branded it the rote reenactment of a “formula based on 40-year-old facts having no logical relation to the present day.”

This stale formula is not the coverage formula actually in the law. The formula started with 1960s and 1970s registration and turnout figures, locating the broken democracies connected to the worst discrimination. But it did not end there. It allowed any jurisdiction that had demonstrated consistent improvement in minority opportunities, without backsliding, to “bail out” of coverage.

As I have written before, this bail-out provision — and a companion “bail in” section roping intentional wrongdoers into a preclearance-like regime — connected the old problem to present circumstances. Any jurisdiction not covered in 2006 was either never broken or was broken but healed. Which means that any jurisdiction covered in 2006 was either healed but didn’t overly mind the costs of preclearance … or was not sufficiently healed. The decision to re-up these jurisdictions in 2006 was emphatically a determination connected to 2006 information.

It is odd that bail-out — the logical relation that Congress did establish to connect forty-year-old facts to the present day — is all but absent from the majority’s decision. It was mentioned three times at oral argument, but not by any Justice. In today’s opinion, the Chief Justice mentioned it briefly in the course of reviewing the procedural history — including a review of the Court’s 2009 decision in NAMUDNO v. Holder that was all about bail-out. But even though it should have been top of mind, there is no attempt in the substance of the opinion to confront bail-out as the living organism within the coverage formula, contracting coverage to suit present conditions.

The Court also struck a simulacrum of Section 4 once aimed at casting a ballot; now, applied to vote dilution, its geographic coverage is no longer appropriate to the problem. Congress’s original formula was fine, said the Court, for problems related to casting a ballot; after all, the section’s baseline began with registration and turnout figures. But the Court thinks it irrational to select jurisdictions with a risk of problems like vote dilution using a formula based on turnout.

Except, of course, that the registration and turnout figures in section 4 were always proxies. Congress did not set out to solve registration difficulties alone: it set out to solve discrimination based on race in the political process. Anomalously low registration and turnout were just ready measures of the problem. An ailment that causes a fever one day may cause chills or hives the next; treating the fever does not mean that the ailment is gone. The Court’s misunderstanding of the scope of the problem mistakes the most obvious symptoms for the problem itself.

So the Court lashed out at a strawman. And yet, the fact remains that the real Section 4 is now just as null as the fictional Section 4 struck down today.

There will be plentiful attention to what Congress can or should do now. Some are calling for a new coverage formula, styled around Section 2 litigation or levels of racial polarization or levels of prejudice. (This will be a difficult road: any “disparate geographic coverage” must be “sufficiently related to the problem that it targets,” using current data. And to the extent this requires a showing of recent harm as a proxy for future harm, the current data is skewed by the very success of Section 5.) Some are calling for a constitutional amendment. Some are calling for an approach that focuses on race-neutral promotion of voting rights instead. I am skeptical that a substitute regime will effectively address the most pernicious problems, but if it is possible to have an adult conversation about the topic, that conversation is not only welcome, but necessary.

So instead, let me briefly discuss life in the covered jurisdictions in the interregnum between the preclearance regime now past and the protective regime (whatever its contours) of the future.

As of 10:10 a.m. ET this morning, protection of the effective exercise of the franchise for racial and ethnic minorities relies on two primary supports. The first is incumbent self-interest: if minority communities’ anger at today’s decision turns to mobilization at the polls, elected officials may calculate that any new regressive seawalls will be overwhelmed by a wave of new participants, and pivot to surf the tide instead.

Where racial polarization is stark and minority communities are somewhat smaller, the scenario above looks far too rosy: local incentives align around containing rather than incorporating a burgeoning swell of minority participation. Here, voting rights now depend on affirmative litigation.

This litigation comes at a cost. The lawyers and political data experts needed to prove a violation of Section 2 of the Voting Rights Act are expensive. And even if statewide election rules and redistricting plans become natural targets for government, nonprofit, and party resources, the costs of these suits may be prohibitively expensive for others. When the city council lines of a small town are redrawn to fracture the representation of a growing minority community that threatens the status quo, poorer communities will find it harder to fight back.

Intriguingly, the costs are not merely one-sided. (This is not cause for solace.) Costs may also well increase for the small towns in covered jurisdictions, making the absence of Section 5 a lose-lose proposition. Under Section 5, the administrative preclearance process was relatively straightforward for the vast majority of proposed policy changes. And though the preclearance process (expressly) did not insulate laws from subsequent litigation, successful preclearance may have served as a signal to deter follow-on lawsuits, in cases where affirmative claims were plausible but uncertain. Without Section 5, that signal disappears. Which may lead to an increase in litigation, for warranted and unwarranted lawsuits alike. Local governments that choose to defend will find their lawyers expensive as well. We may see exactly how much the purportedly restored dignity of covered jurisdictions is worth.

The irony for states seeking jurisdictional dignity is that much of this new litigation will arrive in the arms of plaintiffs seeking not only relief under Section 2, but a finding of intentional discrimination. Why? Section 3 of the Voting Rights Act, the “pocket trigger,” allows federal judges to impose a regime similar to preclearance in most respects, on any jurisdiction violating the voting guarantees of the Fourteenth or Fifteenth Amendments.

This standard is high, but not impossible. And it embraces far more than animus. Per then-Judge Kozinski of the Ninth Circuit:

The lay reader might wonder if there can be intentional discrimination without an invidious motive. Indeed there can. . . . Assume you are an anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have. Your personal feelings toward minorities don’t matter; what matters is that you intentionally took actions calculated to keep them out of your neighborhood.

In the case there at issue, Judge Kozinski found Los Angeles’s redistricting plan to be “a lucid demonstration that elected officials engaged in the single-minded pursuit of incumbency can run roughshod over the rights of protected minorities.” A consequent consent decree effected “bail-in” for Los Angeles County for ten years. Since 1979, cities and counties in nine different states, as well as the states of Arkansas and New Mexico have been “bailed in” to a preclearance system.

Just last year, a federal court found that the Texas redistricting plans were enacted with discriminatory intent. I would not be shocked to see a request for “bail in” to follow, in Texas and in other areas covered yesterday and suddenly uncovered today.

Section 5 may have involved a perceived affront to the dignity of local jurisdictions, but it also allowed them to shunt responsibility for the slight. Local officials could claim that Congress had erred: there is surely a political benefit to claiming that preclearance isn’t really deserved, and without a more particularized determination, all jurisdictions could claim that benefit. The Court’s decision today may well lead to federal court orders restoring preclearance piecemeal, and more directly attributing responsibility in the process. And if constitutional fit thereby improves, it would improve at the cost of the very dignity of the jurisdictions that requested the Court’s decision today.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.